State AG Opinions
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Can a Texas school district require its contractors to pay workers a living wage?
The Attorney General concluded no, at least for contracts covered by the state prevailing-wage law. The McAllen school district wanted to require its outside contractors to pay a 'poverty level wage' …
When the NC State Auditor audits a state agency, can he look at the confidential personnel files of state employees without their permission, their department head's permission, or a court order, or does the State Personnel Act's confidentiality rule (G.S. § 126-24) block him?
Yes, he can. AG Mike Easley's office concluded that G.S. § 147-64.13 declares the State Auditor's Article 5A powers take precedence over any conflicting provision of law. The Auditor's authority under…
Does a parole condition to register as a sex offender force local police to register the parolee?
The Attorney General concluded no. A parole contract requiring a parolee to 'comply with Sex Offender Registration Program' is an agreement between the parolee and the Pardons and Paroles Division, an…
Can a New York fire district board impose a fine on a property owner whose alarm system keeps triggering false alarms?
No. The AG concluded a fire district's board of fire commissioners has no statutory authority to impose fines, and the Town Law does not give that power. A town or village can pass a local law to impo…
Could the NC General Assembly constitutionally pass a lottery statute whose effective date depended on a favorable statewide voter referendum?
Yes. The opinion concluded such legislation would be constitutional under *Manly v. Raleigh* (1859) and the line of NC cases following it. NC follows the minority view that the legislature may make th…
When the legislature gave the ECU Medical Faculty Practice Plan 'flexibility' to handle its own real property acquisitions, did that mean it no longer needs Council of State approval, Joint Legislative Commission consultation, or AG legal work for those transactions?
No. The 1998 flexibility act let the ECU Medical Faculty Practice Plan adopt its own rules to perform the same property functions the Department of Administration usually performs. It did not exempt t…
Must Texas local governments hold a hearing before any property tax increase, even from new construction?
The Attorney General concluded yes. Tax Code section 26.05(d) requires a political subdivision to hold a public hearing before adopting a tax rate that would collect more total taxes than the previous…
Can a lawyer advertise in the bail bond yellow pages without a bondsman license?
The Attorney General concluded yes, at least as a matter of law. Section 15(g) of the Bail Bond Act bars a person from advertising 'as a bondsman' without a license, but a 'bondsman' is defined as som…
Does federal food labeling law override Texas' standard weights for loaves of bread?
The Attorney General concluded no, at least as a matter of law. Texas Health and Safety Code section 434.007 requires wholesale and retail bread loaves to weigh a pound, a pound and a half, or another…
Does a water district's resign-to-run rule apply to Edwards Aquifer Authority board members?
The Attorney General concluded yes. Water Code section 49.072 says a director of a district who becomes a candidate for another office is no longer qualified to serve, and chapter 49 applies to the Ed…
Can a city council force its police to buy vehicles with asset forfeiture money?
The Attorney General reached a two-part answer. No, a city council cannot compel its police department to buy vehicles with asset-forfeiture funds: under chapter 59 of the Code of Criminal Procedure, …
Can a county invest its permanent school fund at below-market rates to support low-income housing?
The Attorney General concluded no. Under article VII, section 6 of the Texas Constitution, a county holds its permanent school fund as a trustee for local public schools and owes the fund a fiduciary …
Could Idaho voters resurrect the state prevailing-wage law (using Davis-Bacon county-seat rates for public works) that the Legislature had repealed in 1985?
The proposed initiative would have re-enacted the language of Idaho Code 44-1006, repealed in 1985, requiring public works contracts to specify minimum wage rates and fringe benefits set by the Depart…
If an Oregon legislator fails to disclose a conflict of interest before voting, can the state ethics commission investigate and fine them, or does each chamber have exclusive constitutional authority?
The AG concluded that under Article IV, section 9, of the Oregon Constitution (the state's Speech or Debate Clause), each chamber of the Legislative Assembly has exclusive authority to investigate and…
Is a state agency or university exempt from another state agency's rules just because it's a state entity?
The Attorney General concluded no. A properly adopted rule from a state agency that has the legislature's rule-making authority carries the force of law, and a participant in the regulated activity is…
When must the Texas Comptroller lower a school district's taxable property values after a tax appeal?
The Attorney General concluded the Comptroller had no duty to adjust. Education Code section 42.257 makes the Comptroller revise the taxable property values it reports for school funding only when a f…
Is a county's racetrack admission fee an illegal local occupation tax in Texas?
The Attorney General gave a partial answer. The 15-cent racetrack admission fee a county collects under section 6.17(a) of the Texas Racing Act, to pass on to cities in the county, is an occupation ta…
Can an Oregon hospital discipline a doctor for performing aid-in-dying procedures on its premises in violation of hospital policy?
Yes. A hospital could enforce its contract or policy prohibiting Death with Dignity participation on its premises, including disciplining employees or terminating leases of contracted providers who vi…
Can a local school board or the Governor appoint a county commissioner to a community college board of trustees? Can multiple county commissioners or school board members serve simultaneously? What are the term and conflict-of-interest rules?
Yes a county commissioner can be appointed by the school board or Governor, and yes more than one can serve. School board members can also be appointed by the Governor or county commissioners. Terms m…
Can a New York county charter require referendums beyond what the County Charter Law specifies, and how does that interact with a county administrative code?
Two answers. A county charter can include additional referendum provisions if they were authorized by a prior version of the State Constitution or State law and have been preserved by Article IX's sav…
Can an outgoing Speaker of the NC House make appointments to a state board that don't take effect until after he leaves office, locking in his choices over the new Speaker's preferences?
No. The outgoing Speaker's last-day appointments to the Travel and Tourism Board for terms beginning the next day (after his own term as Speaker had ended) were unauthorized and void. The terms of boa…
Can the North Carolina Marine Fisheries Commission regulate where, when, and how commercial fishermen can harvest menhaden in the near-shore Atlantic waters off the state's beach communities, and can the Commission use tourism impacts as a basis for those restrictions?
Yes for conservation-based restrictions; no for tourism-based restrictions. AG Mike Easley's office concluded that the Marine Fisheries Commission's statutory authority extends to time, place, season,…
Can a village police officer in New York also serve as a member of the village zoning board of appeals?
Yes. The AG concluded the offices are compatible. No statute prohibits the combination; Village Law § 3-300(3) bars only elective-plus-appointive village office combinations, and the police officer is…
Can a New York county legislator also serve on the board of the Montgomery-Otsego-Schoharie Solid Waste Management Authority, given the extensive interaction between the Authority and the participating counties?
Yes. The AG concluded that the positions are compatible. Public Authorities Law § 2041-b requires MOSA board members to be county residents and bars only elected officials being appointed as MOSA empl…
Can a North Carolina public body close a meeting to talk with its attorney about potential lawsuits that have not yet been filed, or does the open meetings law require an actual existing lawsuit before the body can go behind closed doors?
Yes, with a reasonable basis. AG Mike Easley's office concluded that G.S. § 143-318.11(a)(3)'s attorney-client exception allows a public body to close a meeting to consult with its lawyer about actual…
Can a North Carolina county Department of Social Services report to credit bureaus the debts owed to it by people who received public-assistance overpayments, or does the law that protects the confidentiality of welfare recipients block that?
Yes, with conditions. AG Mike Easley's office concluded that G.S. § 108A-80's confidentiality bar contains a carve-out for purposes 'directly connected to the administration' of public-assistance prog…
If a New York village uses its supersession authority to enact a local law replacing part of the Village Law, do later state amendments to that Village Law section automatically supersede the village's local law?
No. The AG concluded that local laws enacted by a village under its supersession authority remain valid despite subsequent State amendments to the superseded Village Law sections, until the village it…
Can Westchester County require public school districts to comply with the county's air quality permit rules for school boilers, or does the state Commissioner of Education's authority preempt the county?
No, the county's rules don't apply. The AG concluded that school boilers are reviewed by the State Department of Environmental Conservation under Environmental Conservation Law Article 19, as a condit…
Can the UNC Board of Governors limit Optional Retirement Program (ORP) eligibility to senior academic and administrative officers, when the statute speaks generally of 'administrators and faculty with the rank of instructor or above'?
Yes. The statutory phrase 'administrators and faculty of the University of North Carolina with the rank of instructor or above' is ambiguous. It clearly limits faculty to those holding the rank of ins…
Does the Nassau County Charter's mandatory-referendum requirement for local laws affecting elective officers still stand, even though the State Constitution now calls only for a permissive referendum?
Yes. The AG concluded that under the savings clause in Article IX, § 3(b) of the State Constitution, Nassau County Charter § 155 (enacted 1937) remains in force and requires a mandatory referendum for…
Does a New York school board trustee automatically lose her seat after pleading guilty to petit larceny?
Yes. The AG concluded that under Public Officers Law § 30(1)(e), a school board trustee vacates her office by operation of law on a guilty plea to petit larceny. Petit larceny is a misdemeanor that in…
Can the Wake County manager and the Raleigh city attorney serve on the Centennial Authority (the body that operated the RBC Center)? If they do, can they participate in votes that affect the county and city that employ them?
Yes to both questions. The Facility Authority Act lets the county commissioners and city council appoint their employees (not themselves) to the Authority. The common-law incompatible-offices doctrine…
If Oregon raises retirement benefits for current PERS retirees, does that count as an unfunded state mandate that the state has to pay for under the constitution?
The AG concluded that proposed legislation increasing PERS retirement benefits would require local governments to provide an increased level of service for an existing program under Article XI, sectio…
Can a Maryland county or Baltimore City create a special tax or a benefit assessment district just to pay for public library services?
Yes, with limits tied to home rule status. The opinion concluded the State could levy a special library tax at any time, that Baltimore City, Baltimore County, and Montgomery County already had genera…
Can a volunteer firefighter belong to two different fire companies at once if one of them only does ambulance work?
No. Town Law § 176-b(10) flatly bars a person from being a member of more than one volunteer fire company, even if the second company only provides ambulance and emergency services. A firefighter may,…
If a New York village snowplow knocks over my mailbox during snow removal, does the village have to pay to fix it?
Not automatically. The AG concluded that a village is not liable for damage to a mailbox placed in the village's highway right-of-way if the damage was caused by non-negligent snow removal. The mailbo…
When a state department surveys its employees about workplace conditions, are the questionnaires, answer sheets, and written comments public records, or are they confidential personnel records?
They are public records, with one carve-out. Surveys created by a state agency in the course of its business are public records under G.S. 132-1 and must be made available unless a specific exception …
Can the NC Low-Level Radioactive Waste Management Authority pursue 'decay-in-storage' (holding radioactive waste long enough for it to decay to safe levels) as an alternative to permanent disposal, under its existing statutory mandate?
The Authority can study and recommend decay-in-storage as an option, but cannot actually build or license a DIS facility without first getting approval from the General Assembly. Chapter 104G uses 'ma…
Can a Certified Registered Nurse Anesthetist administer anesthesia in NC without a physician's supervision?
Generally no. The Nursing Practice Act and Board of Nursing rules require CRNA anesthesia care to be under physician supervision because anesthesia management involves prescribing medical treatment an…
Can a Texas parent or hopeful adoptive parent advertise to place or find a child for adoption?
The chair of a Texas House committee asked four questions about the law (Penal Code section 25.09) that makes it a crime for anyone but a licensed child-placing agency to advertise that they will plac…
Do New York's restrictions on police campaign activity apply to sheriffs and deputy sheriffs?
Yes. The AG concluded that sheriffs and deputy sheriffs are now 'police officers' under State law and members of a 'police force' for purposes of Election Law § 17-110, so they are bound by the same r…
Does a Texas cosmetologist have to be tested and certified free of hepatitis to get a license?
The Texas Cosmetology Commission's interim director asked two things about a 1997 law requiring an applicant for a new or renewed cosmetology license to submit a doctor's certificate showing the appli…
Can NC require the BUYER of electrical equipment to make sure the equipment was tested by a qualified laboratory, or does that legal duty fall only on the seller?
On the seller, under Article 4 of Chapter 66. Article 4 (G.S. § 66-23 and § 66-27A) explicitly addresses persons 'selling, offering for sale, assigning, or disposing of by gift as premiums' electrical…
Can a corporation that isn't owned by veterinarians own a vet clinic or employ vets in Texas?
The director of the Texas veterinary board asked whether several business arrangements between a corporation that is not owned entirely by veterinarians and a practicing veterinarian amount to the cor…
Can a Texas appropriations rider force state agencies to take and pay for the Human Rights Commission's training?
The chair of the Texas Southern University Board of Regents asked whether a state agency or university that got three or more employment-discrimination complaints in a year had to let the Texas Commis…
Must Texas agencies buy computers through the disability set-aside program or the state IT purchasing rules?
The General Services Commission's director asked whether the mandatory purchasing program that steers state agencies to buy goods made by people with disabilities (Human Resources Code chapter 122) co…
Can the Texas Legislature let a state agency interpret the home equity amendment to the state constitution?
A state senator asked whether the Legislature, by statute or by a constitutional amendment, could put a state agency in charge of interpreting article XVI, section 50 of the Texas Constitution, the 19…
Can a Texas city or district that joined a regional 9-1-1 plan pull out of it on its own?
The executive director of the state 9-1-1 advisory commission asked three questions after the City of Corpus Christi tried to drop out of its regional 9-1-1 plan. First, can an emergency communication…
When a parcel of land straddles two New York towns, can one town's zoning board count the acreage in the neighboring town to satisfy its minimum-acreage zoning rule?
No, not by itself. The AG concluded that a property owner with land in both Clinton and Stanford had to comply with each town's zoning separately. Clinton could not impose its rules on Stanford land, …
Can the Dutchess County Transportation Program Administrator also serve on the City of Poughkeepsie Planning Board, given that the County reviews some of the City Planning Board's actions?
Yes. The AG concluded the positions are compatible. General City Law § 27(12) provides that serving on a county planning board does not disqualify a person from a city planning board, and General Muni…
When the 1998 General Assembly appropriated capital project money for NC community colleges, can the colleges receive the money without coming up with matching local funds?
No. G.S. 115D-31(a)(1) imposes an affirmative obligation on the State Board of Community Colleges to require equal matching funds before disbursing state money for land purchase, construction, or remo…
If a city releases executive-session minutes to one citizen, does it have to give the same minutes to anyone else who asks?
Yes, under the law as it stood in 1998. The AG found the City of Newark violated FOIA when it released personnel-related executive-session minutes to one citizen who requested them but withheld the id…
Is a Minnesota school district required to make the same level of health insurance coverage available to retired employees who are 65 or older as to active employees?
No. The AG concluded that Minn. Stat. § 471.61, subd. 2b lets retired employees continue indefinitely in the employer-sponsored insurance group they were in at retirement, but the requirement that ret…
Can an electric membership corporation (EMC) in NC sell propane gas at retail to its members? What if a wholly-owned subsidiary does it, or through a joint venture?
No to both. EMCs in NC are organized under Chapter 117 with a narrow statutory purpose: provide electric service to members. They cannot expand into retail propane distribution, directly or indirectly…
Can a town withhold housing code violation notices from public records requests by calling them investigation files?
Yes, under the law as it stood in 1998. The AG found that a town's Code Enforcement Officer is an investigative agency, so notices of Housing Code violations qualify as exempt investigatory files unde…
Could the DC Inspector General force the DC Housing Authority and its employees to turn over documents and testify, even though DCHA was an independent agency under federal-court receivership and was statutorily exempt from the Procurement Practices Act?
Yes. The Inspector General's subpoena and audit authority did not depend on whether the audited agency was inside the Procurement Practices Act. The 1995 FRMA amendments and the 1996 Procurement Refor…
Does NC's Environmental Management Commission have to go through formal administrative rulemaking before signing a cooperative agreement with the federal National Parks Service and Forest Service about reviewing air permits for facilities near Class I federal lands?
No. Signing the MOU is not rulemaking. The MOU is an internal cooperative agreement between NC and federal land managers about how they will share information and consult on Prevention of Significant …
Does a state Consumer Protection Board employee serving as the Board's representative on an advisory board to the Targeted Accessibility Fund get state defense and indemnification, or does the Board need to buy private insurance?
Yes, the employee is covered. The AG concluded that a Consumer Protection Board employee serving as the Board's representative on the TAF Advisory Board is acting within state employment, so Public Of…
If a NC sheriff's election is being contested and won't be resolved before the incumbent's term ends, who serves as sheriff in the meantime?
The incumbent. Hoke County had a disputed 1998 sheriff race that the State Board of Elections had ordered redone, but the appeal would not resolve before the incumbent's term ended December 7, 1998. T…
When the 1998 budget bill restored the cost-of-living raise for state employees with poor performance ratings, did that fix reach backward to give them the 1997 COLA they missed too, or only the 1998 COLA?
Only the 1998 COLA. The NC AG concluded that Session Law 1998-212 restored COLA eligibility going forward for employees who had been excluded under § 126-7(c)(4b) because of documented poor performanc…
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